The Second Circuit reminds courts that it is not necessary for a Title VII harassment plaintiff to prove specifically that there was physical contact, that their work performance suffered, or that they were personally targeted for harassment to prove that there was a “severe or pervasive” hostile work environment.
Rasmy v. Marriott Int’l, Inc., No, 18-3260 (2d Cir. Mar. 6, 2020): Plaintiff Rasmy began working as a banquet server at the famed Essex House in Central Park South in 1991, and continued until he was fired in May 2016. “Rasmy identifies himself as of Egyptian heritage and as a ‘devout Coptic Christian.'”
According to the summary judgment record, Ramsy reported to human resources in 2012 “that certain employees were engaging in wage theft and overcharging.” Word got out about his complaints, and “other employees allegedly began retaliating against” him. This included racial, ethnic and religious slurs. His union steward (Efstratiou) “called him a ‘f**king Egyptian rat,’ and a ‘fucking mummy,’ and would say ‘where’s the f**king mummy.” “Efstratiou also told Rasmy … that ‘the idea of God is garbage,’ ‘[r]eligions [are] for the stupid people,’ and that ‘priests are child molesters and alcoholic[s].'” Other employees also supposedly harassed him, calling him a “rat,” “[t]he mummy,” “camel,” “Egyptian rat,” “pretentious Christian,” and “gyps[y].”
Efstratiou allegedly also made comments that, while not specifically targeted at the plaintiff, could be perceived as offensive. “Efstratiou had also reportedly told Rasmy that ‘Greeks are the only pure race’ because they ‘lived on the same land for 3,000 years,’ while ‘Egyptians have been occupied all their history.’ At a Mormon convention hosted at Essex House in 2014‐15, Efstratiou referred in Rasmy’s presence to the Mormon guests as ‘f**king non‐alcoholic Christian[s]’ and said that ‘they don’t drink but they marry their sister.'”
Complaints to different levels of the Marriott organization reportedly did not stem the harassment. Eventually he filed an EEOC charge, which led allegedly to a new round of abuse. Director of Human Resources Doherty “explicitly conveyed to [him] how upset she [was] about the extra work [he] caused her because of [his] complaints,” verbally criticized him, and raised the specter of his being fired, punctuated with the threat, “keep your mouth shut about anything [that] happen[s] in this hotel or your days will be numbered.” Finally, on May 24, 2016, Ramsy was terminated, supposedly for getting into an altercation at work.
In the ensuing lawsuit, alleging Title VII and Section 1981 claims (plus state- and city-law claims), the district court granted summary judgment on harassment and retaliation under federal law (dismissing the state and local law claims without prejudice).
The Second Circuit reverses. On the harassment claims, the court holds that the district court misperceived and overstated the importance certain elements of proving a hostile work environment. The Second Circuit has long held that evaluating harassment is a totality of different considerations, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s [job] performance.” The district court, though, rigidly took each of these factors as a separate requirement.
The court notes that the district court failed to give weight to hostile and offensive comments that were not expressly based on ethnicity or religion (like “rat”), but that could have been understood that way in context. “Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.”
Likewise, the district court ought to have weighed “comments that Rasmy overheard that were not directed at him but allegedly were purposefully made to others in his presence.” The court notes that “conduct not directly targeted at or spoken to an individual but purposefully taking place in his presence can nevertheless transform his work environment into a hostile or abusive one, and summary judgment for Defendants on this basis was unwarranted.”
The district court also inappropriately drew inferences in favor of the defendant. Its conclusion that “the unmistakable inference from the timing of the comments after years without incident [is] that [Rasmy’s] coworkers were likely motivated by personal animus in response to [Rasmy’s] allegations of wage theft more than any discriminatory animus” amount to “inappropriate … factual determinations regarding Defendants’ motivations.”
The district court put excessive weight on the absence of physical contact as evidence that the harassment was not severe. While a physical assault – even a single incident – could amount to a hostile work environment, it is not a prerequisite to finding severity. “Rasmy has alleged numerous incidents of discriminatory harassment over the course of at least three years, and he claims that despite his repeated complaints to various persons in Marriott management, Marriott failed to respond appropriately. In examining the question of the severity of Defendants’ alleged discriminatory conduct and its effect on Rasmy, we consider relevant the total impact on Rasmy of the many alleged episodes of harassment over the course of three years.”
Finally, the district court erred in assessing whether there was a genuine dispute that the harassment interfered with his performance at work. “By its very nature that determination is bound to raise factual disputes that likely will not be proper for resolution at the summary judgment stage. In this case, there is a reasonable inference that Rasmy participated in a physical altercation [in 2016] as part of a deteriorating job performance caused by the alleged hostile work environment.” There was also evidence that he became overwhelmed by emotion at work and sought psychiatric help.
On the retaliation claim, the panel finds a genuine dispute of material fact about whether Rasmy’s EEOC charge caused his termination. “Rasmy asserts that after he filed his EEOC charge, Doherty was upset, ‘verbally abused’ him, threatened to fire him, and told him to ‘keep [his] mouth shut’ about anything that happened in the hotel ‘or [his] days will be numbered.’ Whether Rasmy’s firing five months after a complaint of discrimination was caused by his complaints or, as Marriott argues, by his fight with Pongpanta, raises a factual issue that should be decided by a jury.” There were also ample facts about the altercation that led to his firing, calling into doubt the sincerity of the employer’s explanation.